Medium Neutral Citation: R v Elmer (a pseudonym) [2025] NSWDC 390
Hearing dates: 8 August 2025
Date of orders: 8 August 2025
Decision date: 08 August 2025
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment of 8 years with a non-parole period of 5 years

Catchwords:
CRIME — Child sex offences — Sexual intercourse with child >10 <14 — Circumstances of aggravation
CRIME — Child sex offences — Indecent assault — Circumstances of aggravation
CRIME — Child sex offences — Incite act of indecency child — Circumstances of aggravation
SENTENCING — Mitigating factors — Prior good character
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Delay — Maximum penalty — Objective seriousness
SENTENCING — Sentencing procedure — Sentence after trial — No evidence to support a conviction on one count — No power to stay proceedings after a jury verdict — No power to reject jury guilty — No facts to sentence for on count — Only remedy s 10 Crimes (Sentencing Procedure) Act 1999 (NSW) disposition
SENTENCING — Subjective considerations on sentence — Drug use and mental health decline after the commission of offences

Legislation Cited:
Bail Act 2013 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Clarkson v R [2011] VSCA 152
Cowling v R [2015] NSWCCA 213
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Franklin v R [2016] NSWCCA 319
Hoare v The Queen (1989) 167 CLR 348
MacDonald v R [2024] NSWCCA 240
Magnuson v R [2013] NSWCCA 50
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
R v Cattell [2019] NSWCCA 297
R v Daley [2010] NSWCCA 223
R v Gavel [2014] NSWCCA 56
R v Herring (1956) 73 WN (NSW) 203
R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
RvTodd [1982] 2 NSWLR 517
R v Van Ryn [2016] NSWCCA 1
R v Windle [2012] NSWCCA 222
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Way v R [200] NSWCCA 131
Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

Texts Cited:
D T Kenny, “The social dynamics and impacts of institutional child sexual abuse” (September 2017) 29(8) Judicial Officers Bulletin 70

Category: Sentence
Parties: Robert Elmer (a pseudonym) (the offender)
Director of Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
S Fraser (for the offender)
D Coulton (for the Crown)
Solicitors:
Circular Legal (for the offender)
Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2023/66156
Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) s 578A Crimes Act 1900 (NSW) there is to be no publication of any information that leads to the identifying of a child witness. Identifying information has been removed from this version of the judgment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Elmer (a pseudonym)

Details

AGLC: R v Elmer (a pseudonym) [2025] NSWDC 390
Case: [2025] NSWDC 390
Decision Date: 08 August 2025

CaseChat Overview and Summary

The case of R v Elmer involved a defendant charged with multiple offences related to sexual abuse of a child. The accused, Elmer, was charged with sexual intercourse with a child over the age of ten, indecent assault, and inciting an act of indecency with a child, all of which were committed under circumstances of aggravation. The case was heard in a court of criminal jurisdiction in New South Wales. The central dispute was the appropriate sentence for Elmer, given the serious nature of the crimes and the circumstances surrounding them.

The primary legal issues before the court were whether the evidence supported a conviction on all counts, and if so, what sentence should be imposed considering the maximum penalties, the objective seriousness of the crimes, and the mitigating factors such as Elmer's prior good character and the impact of drug use and mental health issues post-offence. The court also had to consider statutory provisions that limited its ability to alter the outcome of the jury's verdict or to reject a guilty finding without evidence.

The court found that while the evidence supported a conviction on some counts, there was insufficient evidence to convict Elmer of one particular charge. Despite this, the court was unable to stay the proceedings or reject the guilty verdict due to statutory constraints. The court sentenced Elmer to an aggregate term of imprisonment of eight years, with a non-parole period of five years. The sentence took into account the maximum penalties for the offences, the objective seriousness of the crimes, and the mitigating factors presented. The court concluded that the only available remedy under the applicable legislation was to impose a sentence within the statutory limits.

Orders

Orders of the court

Aggregate sentence of imprisonment of 8 years with a non-parole period of 5 years

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Elmer (a pseudonym) [2025] NSWDC 390

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 18 of 18 shown

MacDonald v The King
[2024] NSWCCA 240 Para 13

…viction to be overturned on appeal this could lead to my being required to revisit the sentencing determination as occurred recently in MacDonald v R [2024] NSWCCA 240.…
R v Cattell
[2019] NSWCCA 297 Para 58

…d life free of opprobrium or punishment for the crimes that he committed against his stepdaughter: Magnuson v R [2013] NSWCCA 50 at [62]; R v Cattell [2019] NSWCCA 297.…
Franklin v R
[2016] NSWCCA 319 Para 28

…For Count 3, where “under authority” is an element of the offence, it must not be double-counted: Franklin v R [2016] NSWCCA 319 at [67]-[76]. I must take into account take the penetration was partial and occurred for under a minute.…
R v Van Ryn
[2016] NSWCCA 1 Para 26

…hysical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1. This principle is one important reason for the high maximum penalties fixed for such matters at the time and now.…
Cowling v R
[2015] NSWCCA 213 Para 29

…In the Crown's submissions, reference was made to Leeming JA’s decision in Cowling v R [2015] NSWCCA 213 at [16], citing R v Daley [2010] NSWCCA 223. I note that in the paragraph following that set out in the submissions his Honour noted “in every case what matters is the context in which the assault occurs.” Accord…
R v Gavel
[2014] NSWCCA 56 Para 26

…to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1. This principle is one important reason for the high maximum penalties fixed for such matters at the time and now.…
Magnuson v R
[2013] NSWCCA 50 Para 58

…he offender escaped justice and enjoyed life free of opprobrium or punishment for the crimes that he committed against his stepdaughter: Magnuson v R [2013] NSWCCA 50 at [62]; R v Cattell [2019] NSWCCA 297.…
R v Windle
[2012] NSWCCA 222 Para 64

…en to them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.…
Clarkson v R
[2011] VSCA 152 Para 26

…The principle is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1. This principle is one important reason for the high maximum penalties fixed for such matter…
R v Daley
[2010] NSWCCA 223 Para 29

…In the Crown's submissions, reference was made to Leeming JA’s decision in Cowling v R [2015] NSWCCA 213 at [16], citing R v Daley [2010] NSWCCA 223. I note that in the paragraph following that set out in the submissions his Honour noted “in every case what matters is the context in which the assault occurs.” Accord…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 61

…It is not submitted that the principles of Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 apply here.…
R v MAK
[2006] NSWCCA 381 Para 62

…ng for specific crimes within those two events. Separate punishment is required for each matter. There is no discount for multiple offending: R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]. There were discrete acts of criminality but even in the Bombo incident, there were matters that overlapped justifyi…
Weininger v The Queen
[2003] HCA 14 Para 59

…ry question in sentencing involves a choice between extremes. Neither human behaviour nor the fixing of sentences is so simple: Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [22]. I will take into account those competing principles on delay in an attempt to synthesise them in my ultimate sentence.…
R v Simpson
[2001] NSWCCA 534 Para 63

…he minimum period for which he should be imprisoned must properly reflect the gravity of his offences and all the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Ryan v The Queen
[2001] HCA 21 Para 64

…hould let other wrongdoers know what will happen to them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.…
Regina v Simpson
[1999] NSWCCA 367 Para 63

…or which he should be imprisoned must properly reflect the gravity of his offences and all the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Hoare v The Queen
[1989] HCA 33 Para 25

…an be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances: Hoare v The Queen (1989) 167 CLR 348 at [354]; Way v R [200] NSWCCA 131 at [125]. The objective seriousness of a particular offence must be determined in the light of those facts and cir…
Mill v The Queen
[1988] HCA 70 Para 60

…6. I have to structure the sentence such that the overall sentence is just and appropriate to the totality of the offender's crimes: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63].…

Legislation cited in this decision · 4

Children (Criminal Proceedings) Act 1987 (NSW)
578A 2 mentions (from Para 1)
Bail Act 2013 (NSW)
1 mention (from Para 47)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 14)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Elmer (a pseudonym) [2025] NSWDC 390
Hearing dates:	8 August 2025
Date of orders:	8 August 2025
Decision date:	08 August 2025
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 8 years with a non-parole period of 5 years
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child >10 <14 — Circumstances of aggravation CRIME — Child sex offences — Indecent assault — Circumstances of aggravation CRIME — Child sex offences — Incite act of indecency child — Circumstances of aggravation SENTENCING — Mitigating factors — Prior good character SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Delay — Maximum penalty — Objective seriousness SENTENCING — Sentencing procedure — Sentence after trial — No evidence to support a conviction on one count — No power to stay proceedings after a jury verdict — No power to reject jury guilty — No facts to sentence for on count — Only remedy s 10 Crimes (Sentencing Procedure) Act 1999 (NSW) disposition SENTENCING — Subjective considerations on sentence — Drug use and mental health decline after the commission of offences
Legislation Cited:	Bail Act 2013 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Clarkson v R [2011] VSCA 152 Cowling v R [2015] NSWCCA 213 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Franklin v R [2016] NSWCCA 319 Hoare v The Queen (1989) 167 CLR 348 MacDonald v R [2024] NSWCCA 240 Magnuson v R [2013] NSWCCA 50 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 R v Cattell [2019] NSWCCA 297 R v Daley [2010] NSWCCA 223 R v Gavel [2014] NSWCCA 56 R v Herring (1956) 73 WN (NSW) 203 R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 RvTodd [1982] 2 NSWLR 517 R v Van Ryn [2016] NSWCCA 1 R v Windle [2012] NSWCCA 222 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Way v R [200] NSWCCA 131 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629
Texts Cited:	D T Kenny, “The social dynamics and impacts of institutional child sexual abuse” (September 2017) 29(8) Judicial Officers Bulletin 70
Category:	Sentence
Parties:	Robert Elmer (a pseudonym) (the offender) Director of Public Prosecutions (NSW) (Crown)
Representation:	Counsel: S Fraser (for the offender) D Coulton (for the Crown) Solicitors: Circular Legal (for the offender) Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2023/66156
Publication restriction:	Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) s 578A Crimes Act 1900 (NSW) there is to be no publication of any information that leads to the identifying of a child witness. Identifying information has been removed from this version of the judgment…